Prisoners

Guantánamo Bay and KSM

On May 13, 1943, Axis forces in North Africa surrendered. The Allies suddenly found themselves saddled with nearly three hundred thousand prisoners of war, including the bulk of General Erwin Rommel’s famed Afrika Korps. Unable to feed or house their share, the British asked their American comrades to relieve them of the burden. And so, by the tens of thousands, German soldiers were loaded aboard Liberty Ships, which had carried American troops across the Atlantic. Eventually, some five hundred P.O.W. camps, scattered across forty-five of the forty-eight United States, housed some four hundred thousand men. In every one of those camps, the Geneva conventions were adhered to so scrupulously that, after the war, not a few of the inmates decided to stick around and become Americans themselves. That was extraordinary rendition, Greatest Generation style.

The “war on terror” is a very different kind of war, and the prisoners thereof are very different, too. It’s not just that a higher proportion of them appear to have been truly dedicated to the ideology in whose name they were fighting, or that they were unaffiliated with a government. It’s also that their numbers are small—a hamlet compared to the city-size P.O.W. population of 1945. In the nine years since the creation of the purpose-built prison at Guantánamo Bay, Cuba, a grand total of seven hundred and seventy-nine men (and boys—the youngest was fifteen years old when he was captured) have been sent there. It currently holds a hundred and seventy-two. Yet this relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.

A week ago, on the same day that President Obama officially launched his campaign for reëlection, his Attorney General, Eric Holder, announced that Guantánamo’s most notorious inmate, Khalid Sheikh Mohammed, along with four others accused of direct involvement in the 9/11 attacks, will at last be brought to trial—but on Cuban, not American, soil, and before a panel of military officers, not a civilian judge and jury. You may recall that the last time Barack Obama was a candidate he promised that, if elected, he would shut Guantánamo down (by then a fairly uncontroversial position, one that even President Bush and his would-be Republican successor had come around to) and that he would see to it that accused terrorists were prosecuted in civilian courts rather than by military commissions. He promised, too, that his Administration would not continue indefinite detention without indictment or trial and, of course, that it would put a definitive end to the use of torture. He has been able to keep only the last of these promises fully. The rest have been undone by a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.

Two days after the inauguration, Obama, in the dazzling dawn of his Presidency, issued an executive order directing that the Guantánamo detention camps “be closed as soon as practicable, and no later than one year from the date of this order.” The slippage began less than a month later, with a complicated legal tussle over seventeen Gitmo prisoners. Even though they were Chinese Uighurs who had had nothing to do with anti-American violence, the mere possibility that they might set foot on the United States mainland was enough to ignite a brushfire of not-in-my-back-yard hysteria. By May of 2009, it had reached the point where the Senate voted, 90–6, not only to keep Gitmo open indefinitely but also to block the transfer of any of its detainees to U.S. soil, where the civilian courts are. (Though all six dissenters were Democrats, the rest of the caucus voted with the Republicans.) At times, Administration bungling has enabled local grandstanding. Later in 2009, the Justice Department neglected to prepare New York’s City Hall for the impact of its original plan for Khalid Sheikh Mohammed, which was to try him in a Manhattan civilian court. Mayor Bloomberg, Police Commissioner Raymond Kelly, and Senator Charles Schumer quickly turned tail, and so did Obama.

A dispiriting series of tactical retreats from civil-liberties principles has followed. In January of this year, the President signed a politically veto-proof defense-appropriation bill that had been amended to again block funding for any transfer of detainees from Guantánamo to the home of the brave. In March, Obama issued another executive order. While it establishes twice-yearly reviews of the status of current detainees, confirms their habeas-corpus rights, and permits them to be represented by outside lawyers as well as by government-appointed defenders, the order also allows trials by military commissions to go forward, and at Guantánamo to boot. Now, in April, we learn that one such trial will be the case that, a year ago, Holder said (to this magazine’s Jane Mayer) would be “the defining event of my time as Attorney General.” It appears that Holder’s prediction will come true, though not in the way he intended. He was sure that he had an overwhelming case against Khalid Sheikh Mohammed, one that would not have relied on evidence obtained through torture. (Mohammed was waterboarded a hundred and eighty-three times.) But he lost the bureaucratic battle. His anger last week as he announced the decision could not quite mask the Administration’s shame.

The collapse of Obama’s effort to close Guantánamo is the kind of failure that, in our atomized, increasingly dysfunctional political system, has a thousand deadbeat dads. But it has always been within the President’s power to remedy one aspect of the moral morass that Guantánamo symbolizes: the lack of any official accountability for the abuses of the past, especially the embrace of torture. There is no dispute that there was torture, that it was systematic, and that it was encouraged at the highest levels—George W. Bush, in his memoir, currently adorning the best-seller lists, practically boasts of approving it. Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed. No such reasons forbid the appointment of a truth commission. The work of such a commission, charged with compiling the record, affixing responsibility, and formally acknowledging what was done, would be a healthy act of atonement.

Obama has said more than once that he prefers to look forward, not backward. Not everyone feels that way. As soon as the Khalid Sheikh Mohammed reversal was announced, Peter King, the New York Republican who heads the House Committee on Homeland Security, called it “yet another vindication of President Bush’s detention policies.” It is no such thing. Even with all the failings of the current Administration, the difference between its approach and its predecessor’s is the difference between night and day, albeit a rainy, miserable day, overcast with dark clouds. But, by elevating amnesia to official policy, the President has put himself in a poor position to make even that argument. ♦

Hendrik Hertzberg is a senior editor and staff writer at The New Yorker. He regularly blogs about politics.